Ricky Nixon deemed 'hostile' by judge

Steve Butcher

Former AFL player-manager Ricky Nixon was deemed "hostile" by a Melbourne judge during a belligerent appearance in court, defending claims he and his then wife were partly liable for serious injuries suffered by a painter who fell through a hole in their deck.

Desmond Wilks on Wednesday was awarded a total of $500,000, but a jury found Mr Nixon and Judith Nixon were not negligent.

The County Court jury found Hames-Reid Plumbing was negligent and awarded him $213,000 for pain and suffering and loss of enjoyment of life.

Mr Wilks, 72, of Melton South, who was also awarded $287,000 for economic loss, was injured on September 15, 2010.

A director of the company, which denied liability, claimed an employee in 2009 found the deck already cut during work, accessed the section and restored it as it was found.

Mr Nixon was described by Judge Phillip Coish during his evidence as "clearly hostile" after a defence barrister said he was "prevaricating" and "showing no deference to the court whatsoever".

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The judge on Monday also reminded the jury to decide the case only on what they heard and saw in the courtroom, and not be influenced by the circumstances of Mr Nixon's life and "various controversial matters" before his appearance that night on Foxtel.

In his opening, Dyson Hore-Lacy, SC, for Mr Wilks, told the jury that while he would argue Hames-Reid Plumbing "will bear the brunt" of responsibility, that ultimately was a matter for them.

Mr Hore-Lacy said a worker from the company repaired a blockage at the property in July, 2009, and that four pieces of the deck were cut out and removed by the plumber to get access.

He alleged when Mr Wilks stood on his aluminium step ladder there was a "hidden trap that no reasonable painter could expect to anticipate".

"Workers should be allowed to expect that when they go to a place to work, that there are no hidden traps there for them to collapse into," Mr Hore-Lacy said.

His injuries included a subcapital fracture of the left neck of the femur, worsening left knee pain after hip surgery and later lower back pain. Mr Hore-Lacy said there was evidence of secondary injuries to the hip and knee.

Dugald McWilliams, for Hames-Reid Plumbing, told the jury a plumber who attended a call from Ms Nixon in 2009 for a blocked drain "noticed that the deck was already cut", and after the work "replaced the palings as he found them".

His client's case was that they left the deck "in exactly the same way as it was found", secured with the cleat underneath the cut area of the palings and "it remained in that position for a further 14 months". In evidence, Mr Wilks said that when he climbed up the steps, they "collapsed through the decking".

He had no reason to believe there may have been some defect in the decking and that it had looked normal.

Mr Wilks denied the suggestion by Andrew Fraatz, for the Nixons, that he had not inspected the deck carefully enough before starting work and also that he made no effort to avoid placing his ladder on the cut section of the deck.

Ms Nixon, a psychologist research fellow at the Australian Council for Education and Research, the sole registered proprietor of the Kew property, said after the work in 2009 she never got any warning or notice about a hazard.

She noticed the cut was there but "it's not like I was worried over it being there . . . it was there".

Ms Nixon said no one ever told her the deck wasn't secure; she never noticed a "hazard" and that, to her knowledge, there was not a hole in the deck on September 15.

Cross-examined by Mr McWilliams, Ms Nixon said it would be incorrect to suggest that the deck was already cut when the plumber arrived for the work in 2009 because "Hames Reid Plumbing are responsible for the cutting of the deck".

She agreed with Mr McWilliams that in relation to her recollection of the event it would be fair to say her life "has been involved in some significant turmoil in recent times".

Ms Nixon also agreed that the breakdown of her marriage had been a "significant event" in her life, but disagreed it was fair to say that "thoughts about that change in your life would clearly have overtaken any recollection you may have of the events" about Mr Wilks' injury.

When he asked if she agreed that the "recent events in your life had overtaken any recollection of who actually did the cutting on this particular deck", she replied: "It was Hames Reid Plumbing."

Mr Nixon, who gave his occupation as "sports agent", told Mr Fraatz he had never seen a cut in the deck and when asked if he recalled Mr Wilks' "terrible accident" on September 15, 2010, he replied: "Apparently."

Mr Fraatz: "To indicate it with a 'yes' or 'no' would be best?"

Mr Nixon: "Well, I believe he had an accident that day."

No one, he said, prior to Mr Wilks' incident, warned him about a hazard on the deck under the window and nor had anybody reported to him an "incident in that area of the deck".

Asked in cross-examination by Mr McWilliams if it was possible that in 2010, when he was readying to sell the property, he had cleaned the windows, Mr Nixon replied: "Anything's possible in this world."

After a series of questions on that subject, Mr Nixon said: "It doesn't make any difference what I do, to be honest."

"Perhaps if you just answer my questions," Mr McWilliams asked to which he replied: "I just did."

Mr McWilliams: "Mr Nixon?

Mr Nixon: "I just did. Keep going."

"Mr Nixon," he said, "I would ask you to show courtesy to this court."

Judge Coish: "That's all right. You're cross-examining. Don't tell him how to behave. It's a matter for me, so cross-examine the witness."

Judge Coish then suggested to Mr McWilliams that "if you want to ask him questions about cleaning windows, ask him questions about cleaning windows", or "if you want to ask him questions about what we're here for, ask him questions about what we're here for".

"But don't tell the witness how to behave in my courtroom," the judge added.

When Mr McWilliams showed him a document, Mr Nixon said he had already seen it and when asked to wait for a question, Mr Nixon said: "Hurry up. I'm busy."

Mr McWilliams: "You are here to answer questions that I ask of you."

Mr Nixon: "I haven't got much time. Hurry up."

When he got him to confirm the document was a building permit, Mr Nixon responded: "Yes. You can read, just like me. Congratulations."

"Where's this all going?" Mr Nixon asked. "It's just (a) waste of total time."

The jury and Mr Nixon then left the court during which Judge Coish suggested, after Mr McWilliams said Mr Nixon was "showing no deference to the court whatsoever", that to "perhaps let me worry about the court . . . and you worry about your cross-examination".

"The witness (Mr Nixon) is clearly hostile," the judge said. "It's a matter for you as to how you cross-examine him and what the issues are that you take him to."

When cross-examination resumed, Mr McWilliams suggested to Mr Nixon he took no interest whatsoever in what plumbing works were undertaken at this house, to which he responded: "Any suggestion you make about my life, mate, is just a suggestion. None of your business, to be honest."

When Mr McWilliams asked him if he understood that Mr Wilks had fallen through a hole in the deck, Mr Nixon replied: "I've got no idea what happened to Mr Wilks. I wasn't there."

Mr McWilliams: "Very well."

Mr Nixon: "Were you?"

At the end of cross-examination, when Judge Coish asked the other barristers if they had any questions, Mr Hore-Lacy responded: "I don't think so, your Honour . . . not that I'd encourage."

After the jury and Mr Nixon left the court, Mr Fraatz said to Judge Coish he was "sorry about that", to which the judge replied: "Don't apologise to me. Nothing to do with you or me. I've seen far worse."

When the case resumed on Monday, Mr Fraatz handed Judge Coish a Sunday newspaper report about Mr Nixon's planned appearance that night and how "he'll go into some detail about the difficulties he has had with drugs and depression and suicidal ideation and the like".

Mr Fraatz was concerned that some members of the jury may watch the show and hear in court defence submissions about Mr Nixon's "credit".

Judge Coish commented that it would "clearly be appropriate to mention both the article and the fact of the program tonight", and also that "I think I'm on safe ground if I indicate to them that in my view it's highly unlikely Mike Sheahan will be asking Ricky Nixon any questions about the decking at his former residence".

When the jury entered the courtroom, Judge Coish reminded them that at the "outset I gave you directions and they included the direction that you decide the case on the evidence that is presented in this courtroom".

He said that "I am not telling you anything you do not know by pointing out to you that Ricky Nixon has been in the news over a long period of time" and that the previous day there had been an article about Mr Nixon.

The article, he said, was also a "little bit of a promotion" for Mike Sheahan's Foxtel program Open Mike, which would screen that night an interview with Mr Nixon.

Judge Coish continued: "I have got a wide range of powers, but I can tell you now I am not going to exercise any of those powers, so we will live in the real world.

"What you watch on television is a matter for you. What you make of what you watch is a matter for you and if you watch Mike Sheahan interviewing Ricky Nixon tonight on Open Mike, I have no doubt there will be lots of questions and answers concerning more sensational aspects of Ricky Nixon's life.

"I would be reasonably confident in predicting that Mike Sheahan is probably not going to ask Mr Nixon any questions about Des Wilks and a fall when his ladder fell through the decking in 2010, but if he did, that would not be evidence in the court case, would it, so I just go back to the fundamental point I made right at the outset, which is you decide this case solely on the basis of what you hear and see in this courtroom."

As jurors, he said, they were "entitled in assessing a witness to have regard not only to what the witness has said but also to the witness's demeanour, how the witness presents him or herself, because at the end of the day, you are going to be asked to make certain findings of fact and you are going to be asked to assess witnesses".

He concluded: "It is very important that in making your assessment of a witness, you act on the basis of what the witness says in the courtroom and your impression of the witness in the courtroom.

"There is a lot of gossip or talk or information in the public area about, for example, Ricky Nixon.

"For the purposes of this exercise, you have got to segregate whatever you might have heard or read or seen. That is not the evidence in this courtroom. What you are dealing with is what you heard and saw here (Friday) afternoon for about half an hour or something like that."